Court rules for Jefferson Parish deputies in case of man who died in custody

Jefferson Parish deputies who restrained a man after he began to violently resist arrest at a Metairie supermarket in 2007 are not liable for his death, according to a divided federal appeals court. The attorney for the man's family says he will seek relief from the U.S. Supreme Court.

Nayeem Khan, who had an unspecified mental illness, refused to leave the Winn-Dixie store, asserting that someone outside was trying to kill him. A private security guard and an off-duty officer cuffed his hands in front of him until Jefferson Parish sheriff's deputies arrived.

Outside the store, Khan thrashed, kicked and reached for a deputy's gun. Deputies cuffed his hands behind his back and put his legs in shackles. One deputy said Khan's arms and legs were then secured with another set of handcuffs, though other testimony disputed that version of events.

Shortly after being in placed in what the court described as a four-point restraint, Khan stopped breathing. Deputies removed the cuffs and resuscitated him, but he died that night. The Sheriff's Office has denied that Khan was put in a four-point restraint, also known as a hog-tying.

Khan's parents sued former Sheriff Harry Lee and others, but they lost in U.S. District Court in 2010. They appealed to the 5th Circuit Court of Appeals in New Orleans, where a three-judge panel considered the case.

The panel's majority opinion came from judges Rhesa Barksdale of Jackson, Miss., appointed to the court by President George H.W. Bush, and Jennifer Elrod of Houston, appointed by President George W. Bush. They said government officials, including police officers, have a qualified immunity from lawsuits for money damages unless a plaintiff can show "the official violated a statutory or constitutional right."

Sheriff Newell Normand said he isn't happy that a young man died, but agreed with the decision: "I think our position is that our officers took the necessary action and that we did not do anything wrong." While Normand denied that deputies hog-tied Khan, even if somehow that was the case, he said the latest medical evidence shows that hog-tying does not lead to positional asphyxia.

Attorneys for Khan's parents argued that the mere act of hog-tying Khan was a constitutional violation and that Normand and the department were liable for the death. Barksdale and Elrod disagreed. "Although this is a tragic incident, police officers must often make split-second decisions, and qualified immunity shields them from subsequent second-guessing unless their conduct was objectively unreasonable under clearly established law," according to the appeal.

Dissenting was Judge Emilio Garza of San Antonio, appointed by President George H.W. Bush. He said it was unreasonable for the deputies to remove Khan from the grocery store. Khan had calmed down to the point that he was being restrained inside the store without resistance. However, because of his mental condition, Khan began to resist again when he was taken outside, where he believed someone was waiting to kill him.

Garza concluded that if medical personnel had been called to escort Khan away, there might have been no need for the four-point restraint.

"We agree with the dissent by Judge Emilio Garza, and we'll be taking the matter to the U.S. Supreme Court on a writ," Khan's attorney Patrick Hufft said.